Volume 8 Issue 1
Hybrid Threats and Legal Resilience in Taiwan
By Jyun-yi Lee
Introduction
This paper addresses the idea of legal resilience from a political perspective, with contemporary Taiwan as a focal point. The People’s Republic of China (PRC) under Xi Jinping has accelerated its agenda for promoting the “one country, two systems” policy. Accordingly, the leadership of the PRC has implemented various measures to lure Taiwanese people to China, alongside operations that seek to infiltrate Taiwanese society and subvert the existing order. As a democracy, Taiwan can and should respond through democratic means. Rethinking the meaning of democracy, particularly the balance between “democracy as freedom” and “democracy as rule of law,” is necessary.
Taiwan Encountering Hybrid Threats
Since the inauguration of the current Tsai Administration in May 2016, Taiwan has been exposed to growing hybrid threats from the PRC, or what is known as the PRC’s “sharp power.” Hybrid threats can be defined as follows:
The mixture of coercive and subversive activity, conventional and unconventional methods (i.e., diplomatic, military, economic, technological), which can be used in a coordinated manner by state or non-state actors to achieve specific objectives while remaining below the threshold of formally declared warfare.[1]
ccording to this definition, the PRC’s long-term threat of use of force against Taiwan clearly constitutes a crucial part of hybrid threats. In addition, the PRC’s influence campaign, which includes such operations as misinformation, disinformation, censorship, social and academic outreach, bribery, and election meddling, also poses a severe threat to the security of Taiwan. One recent example is the 2018 mayoral elections, during which the New York Times observed that “a Russia-style influence campaign” was used by the PRC to sway the island’s politics.[2] Figure 1 shows instances of the PRC’s hybrid threats to Taiwan according to the categorization of a study supported by the European Centre of Excellence for Countering Hybrid Threats and Swedish Defense University.[3] The study listed 15 instruments of hybrid threats, among which 13 were found to have been (partially) applied by the PRC against Taiwan. The only absent instruments were “unacknowledged war” and “paramilitary organizations,” and this can be explained by the fact that, geographically, the Taiwan Strait renders it relatively difficult for the PRC to organize local paramilitary groups to operate in Taiwan. The instances in Figure 1 are listed for illustrative purposes, and more systematic analysis is required in the future.
Rethinking the meaning of democracy, particularly the balance between “democracy as freedom” and “democracy as rule of law,” is necessary.
A transport helicopter of the R.O.C. Army conducts a drill of air support to rescue a fire accident. (Source: Military News Agency)
The major difficulty of differentiating between exogenous and endogenous manipulations and between state and non-state actors in Taiwan further exacerbates the problem. Given Taiwan’s troubled statehood, its society has long been divided along lines of national identity. Although few are ready to accept the PRC’s “one China” principle, many recognize the cultural and historical linkages across the Taiwan Strait, and/or welcome the economic benefits of cross- Strait exchange. Consequently, the hybrid threats that contemporary Taiwan faces always contain a Chinese element, and determining whether the actors involved are Chinese agents, Taiwanese citizens, or Taiwanese citizens acting as proxies of the PRC is difficult. The social and economic exchange across the Strait has accelerated and expanded since the 1980s, and in 2018 the number of Chinese spouses (mostly female) in Taiwan was approximately 340,000, with approximately 2 million Taiwanese people residing in China.[4] This renders Chinese spouses as well as those who work or study in China and their relatives easy targets for the PRC.
Figure 1 Instruments of Hybrid Threats and Their Manifestations in Taiwan
|
Instruments
|
Meaning and Instances
|
1
|
Propaganda
|
Information operations or the weaponizing of information for strategic objectives.
|
E.g., the Chinese propaganda video titled “My Fighting Eagles Fly Around Taiwan.”[5]
|
2
|
Domestic media outlets
|
State-sponsored news outlets publishing news from the perspective of the state.
|
E.g., the PRC’s English newspaper, the Global Times, expressing hawkish views such as “Scholars see 3 ways to realize reunification with Taiwan.”[6]
|
3
|
Social media
|
Reiteration of news from a state’s domestic media outlets or publication
|
|
|
of new information via state- sponsored accounts, bots, or advertisements.
|
E.g., propaganda and disinformation spread through popular social media
platforms such as Line, Facebook, and PTT.[7]
|
|
|
|
4
|
Fake news
|
Distortions of objective truths as well as misleading stories.
|
E.g., the death of a Taiwanese diplomat stationed in Osaka, Japan, in September 2018.[8]
|
5
|
Strategic leaks
|
Information and documents obtained via cyber or traditional espionage being leaked to influence public opinion, perception, and discourse.
|
|
|
E.g., the PRC accusing intelligence agencies in Taiwan of targeting mainland students on the island.[9]
|
6
|
Funding organizations
|
Funding organizations or think-tanks that promote views friendly to a country’s interests.
|
E.g., the alleged funding of the Chinese Unification Promotion Party by the PRC.[10]
|
7
|
Political parties
|
Influence being exerted via political parties in foreign nations; direct diplomatic relationships between the leaders of two countries.
|
E.g., the alleged funding of the Chinese Unification Promotion Party by the PRC.
|
8
|
Organized protest movements
|
Exploitation of protest or separatist movements in a target society.
|
E.g., the Concentric Patriotism Association paying people to attend
|
|
|
events and attack independence advocates and Falun Gong members.[11]
|
9
|
Oligarchs
|
Maintenance of close ties with local entities through oligarchs who wield political, business, media, and commercial powers.
|
E.g., Eng-Meng Tsai’s [蔡衍明] China Times Media Corporation as part of China’s “Grand Foreign Propaganda” plan.[12]
|
10
|
Orthodox church
|
Use of the Church as a proxy to legitimize a country’s narratives, interests, and worldviews.
|
E.g., the three main pillars of the Chinese Unification Promotion Party being gangs, temples, and overseas Taiwanese businesses.[13]
|
11
|
Cyber tools
|
Espionage, attacks, and manipulation.
|
|
|
E.g., Chinese hackers threatening Taiwan’s elections.[14]
|
12
|
Economic leverage
|
Foreign aid assistance, sanctions, and the use of loaned resources as bargaining chips to pressure a foreign government.
|
E.g., the Dominican Republic and Burkina Faso breaking diplomatic ties with Taiwan as a result of China’s economic influence.[15]
|
13
|
Proxies
|
Gathering of intelligence as well as exertion of political influence in a foreign country.
|
E.g., China redirecting its United Front strategy to focus on a variety of targeted groups.[16]
|
14
|
Unacknowledged war
|
Attacks launched by proxies while diplomatic exchanges proceed.
|
N/A
|
15
|
Paramilitary organizations
|
Intimidation of civilians and hybrid activities such as reconnaissance, defense, and sniping.
|
N/A
|
Sources: Gregory F. Treverton et al., Addressing Hybrid Threats, pp. 45-59 and various news coverage.
Legal Resilience at Stake
he legal resilience of Taiwan is at stake, where “resilience” means “the ability to recover from or adjust easily to misfortune, adversity, unease, conflict, failure, and/or change.”[17] In the literature it generally takes two forms, one that emphasizes resistance and recovery, which refers to “the capacity of a system to suffer disturbances whilst still retaining its ability to return to an earlier stable state,” and one that focuses on adaptation, namely “the capacity of a system to absorb the effects of disturbances through adaptation, whilst still retaining its original function and other core characteristics.” Accordingly, legal resilience also two dimensions, namely the resilience of the law itself, and the role that law plays in rendering other social systems more resilient.[18] Both are reflected in the hybrid threats that the PRC poses to Taiwan.
“Resilience” means “the ability to recover from or adjust easily to misfortune, adversity, unease, conflict, failure, and/or change.”
First, with respect to the resilience of Taiwan’s legal system, the PRC’s many influence operations are not necessarily illegal, but they exploit the vulnerability of Taiwan’s democratic legal system or work in its grey zone, and can even be seen as part of the PRC’s “three warfares”—psychological, media, and legal—broadly defined. For instance, in March 2008, Want Want Group Chairman Tsai Eng-Meng acquired the media syndicate China Times Group. Given Mr. Tsai’s vast business interests in China and close relationship with Beijing, the newspapers, magazines, and television channels of the China Times Group soon adopted a pro-China stance, refraining from reporting negative news about the PRC and even making personnel changes according to the content of the stories. No legal issues exist regarding Mr. Tsai’s acquisition of the China Times Group, and the stance and views of the programs, news coverage, and even advertisements are typically defended in the name of democracy and commercial concerns, but their functioning as a proxy of the PRC is certainly a matter of national security, as some scholars have indicated. [19] Freedom of expression is also invoked when people criticize the establishment with manipulated information or circulate mis- or dis-information on social media.
Another example is the Chinese Unification Promotion Party, a legal entity in Taiwan that was founded in 2005 by “White Wolf” Chang An- lo, a gang accused of engaging in organized crime. The Party includes gangs, temples, and overseas Taiwanese businesses; in many ways, it represents those with long-entrenched vested interests such as village and ward chiefs, temples, and farmers’ and fishermen’s associations in Taiwan. By aiming to facilitate exchange between these groups and their counterparts in the PRC, the Party helps Beijing make inroads into Taiwan at the grassroots level.[20]
Because instances such as these are below the threshold of armed conflict, they do not fall within the purview of the military. The disputable legality of these instances further places them in the grey zone of Taiwan’s legal system and poses challenges in detection and attribution to various police agencies. In a society in which the struggle between unification and independence, or pan-blue and pan- green, constitutes a structural weakness or vulnerability, any warning against such potential threats can be turned into a political issue in itself, resulting in debates over discrimination, exclusion, or electoral manipulation. Hence, the PRC’s hybrid threats function to erode or subvert the existing order from within.
Second, the PRC also seeks to define cross-Strait relations through legal acts. On March 14, 2005, the PRC adopted the Anti-Secession Law, Article 8 of which stipulates that under certain conditions the PRC “shall employ non-peaceful means and other necessary measures to protect China’s sovereignty and territorial integrity.” On February 28, 2018, the PRC’s Taiwan Affairs Office announced the so-called “31 Measures,” claiming to provide Taiwanese businesses and individuals in the PRC with treatment equal to that given to their Chinese counterparts. In his speech at the 40th anniversary of the “Message to Compatriots in Taiwan” on January 2, 2019, Xi Jinping also vowed to promote “the institutionalization of cross-Strait economic cooperation” and stated that both sides across the Strait “should enhance the free flow of trade, connectivity in infrastructure, exchange of energy and resources, and shared industrial standards.” These acts indicate that “rule by law” is a crucial means through which the PRC attempts to “govern” cross-Strait relations unilaterally.
Chemical Corps of the R.O.C. Army conducted a drill of disinfection against potential hybrid threats in Tainan. (Source: Military News Agency)
The law is crucial in the PRC’s Taiwan policy. First, because no legitimate grounds exist on which to rule Taiwan, the PRC must resort to subjective and sentimental factors such as history, nationalism, and culture, as well as the creation of law to conceal the contingent and violent nature of its claims over Taiwan. Second, because the law delimits the acceptable scope of action within a society, the PRC’s reliance on the law functions not only to endow itself with the right to take action against Taiwan, but also to intimidate Taiwan politically and psychologically. Third, the PRC’s measures of “granting favors to Taiwan” are aimed at diminishing the institutional differences between the two sides, thereby constructing a social fact that Taiwan belongs to the PRC. The shrinking of Hong Kong’s civil space as a result of the PRC’s numerous legal acts is a focal point here.
Conclusion
The experience of Taiwan suggests that hybrid threats typically rely on the idea of democracy, exploiting the potential tension between “democracy as freedom” and “democracy as rule of law.” Because both are abstract concepts, their actual scope of application is determined on a case-by-case basis, highlighting the importance of practice. In an emerging democracy such as Taiwan, in which the previous legal system remains but is put into question, the principle of “rule of law” is not as valued as that of “freedom,” which emphasizes rights. Hence, many influential activities are conducted in grey areas of the legal system and in the name of freedom of expression, constantly testing the limits of the “rule of law” and putting legal resilience in question. Accordingly, although the legal system’s ability to adapt (e.g., making tighter regulations, strengthening screening mechanisms, enhancing the cooperation between different agencies) is critical, the ability to constantly renegotiate the functioning and legitimacy of the system may be more crucial.
Dr. Jyun-yi Lee is an Assistant Research Fellow and Acting Director of the Division of Non-traditional Security and Military Mission at the Institute for National Defense and Security Research, Taiwan. He was an assistant research fellow in the Science and Technology Policy Research and Information Center of the National Applied Research Laboratories, Taiwan. He was an assistant professor in the Institute of Strategic and International Affairs at the National Chung Cheng University. Dr. Lee earned his Ph. D. in international relations from University of East Anglia, U.K.
[1] European Commission, “Joint Framework on Countering Hybrid Threats – A European Union Response,” Joint Communication to the European Parliament and the Council, JOIN (2016) 18 final, Brussels, April 6, 2016, p. 2.
[2] Chris Horton, “Specter of Meddling by Beijing Looms Over Taiwan’s Elections,” New York Times, Retrieved November 22, 2018, from https://www.nytimes.com/2018/11/22/world/asia/taiwan-elections-meddling.html
[3] Gregory F. Treverton, et al., Addressing Hybrid Threats (Stockholm: Swedish Defense University, 2018).
[4] Hsiu-E Hsu [徐秀娥], “Astonishing! 2 Million People Marching West, Hollowing out Taiwan’s Labor Force,” [怵目驚心! 西進 200 萬人 掏空台灣勞動力], China Times, Retrieved August 3, 2018, from https://www.chinatimes.com/realtimenews/20180803002327- 260405; Cheng-chung Wang [王承中], “Chinese Spouses Decreasing, the Growth of New Residents Slowing,” [陸配減少 新住民人數成⾧趨緩], Central News Agency, Retrieved July 29, 2018, from https://www.cna.com.tw/news/asoc/201807290048.aspx
[5] Ben Westcott and Nanlin Fang, “China and Taiwan Clash in Lunar New Year Military Propaganda Videos,” CNN, Retrieved February 6, 2019, from https://edition.cnn.com/2019/02/06/asia/china-taiwan-military-propaganda- intl/index.html
[6] Yang Sheng, “Scholars See 3 Ways to Realize Reunification with Taiwan,” Global Times, Retrieved January 3, 2019, from http://www.globaltimes.cn/content/1134550.shtml
[7] Russell Hsiao, “CCP Propaganda against Taiwan Enters the Social Age,” China Brief, Vol. 18, No. 7 (2018), https://jamestown.org/program/ccp-propaganda-against-taiwan- enters-the-social-age/
[8] Kristin Huang, “Taiwanese Official Criticized for Handling of Typhoon Jebi Evacuation Found Dead in Osaka,” South China Morning Post, Retrieved September 14, 2018, from https://www.scmp.com/news/china/diplomacy/article/2164252/taiwanese-official-
[9] Sui-Lee Wee and Chris Horton, “China Accuses Taiwan of Using Students for Espionage,” New York Times, Retrieved September 17, 2018, from https://www.nytimes.com/2018/09/17/world/asia/china-taiwan-espionage- students.html
[10] “Taiwan ‘probing alleged funding of triad-linked groups by China’,” Straits Times, Retrieved October 16, 2017, from https://www.straitstimes.com/asia/east-asia/taiwan-
[11] Stacy Hsu, “Al-Jazeera Reporter ‘Infiltrates’ CPA,” Taipei Times, Retrieved September 14, 2018, from http://www.taipeitimes.com/News/front/archives/2018/09/14/2003700381
[12] He Qinglian [何清漣], “Red Infiltration: Taiwanese News Bought by China,” [紅色滲透: 被中國買下的台灣新聞], opinion.cw [獨立評論@天下], Retrieved March 12, 2019, from https://opinion.cw.com.tw/blog/profile/390/article/7840
[13] “United Front Target Taiwan’s Grass Roots: Gangs, Temples, Business,” CommonWealth Magazine, Retrieved August 22, 2018, from
[14] John Follain, Adela Lin, and Samson Ellis, “China Ramps Up Cyberattacks on Taiwan,” Bloomberg, Retrieved September 20, 2018, from https://www.bloomberg.com/news/articles/2018-09-19/chinese-cyber-spies-target- taiwan-s-leader-before-elections
[15] “China Accused of ‘Dollar Diplomacy’ as Taiwan Loses Second Ally in a Month,” Guardian, Retrieved May 24, 2018, from https://www.theguardian.com/world/2018/may/24/taiwan-criticises-china-after- burkina-faso-ends-diplomatic-relations
[16] Dan Southerland, “Unable to Charm Taiwan into Reunification, China Moves to Subvert Island’s Democracy,” Radio Free Asia, Retrieved May 25, 2018, from https://www.rfa.org/english/commentaries/taiwan-subversion-05252018144757.html
[17] Philippe Bourbeau, “Resilience, Security, and World Politics,” in David Chandler & Jon Coaffee, eds., The Routledge Handbook of International Resilience (Abingdon: Routledge, 2016), pp. 26-27.
[18] Aurel Sari, “Legal Resilience in an Era of Gray Zone Conflicts and Hybrid Threats,” Exeter Centre for International Law Working Paper Series, 2019/1, p. 20, from https://ssrn.com/abstract=3315682 or http://dx.doi.org/10.2139/ssrn.3315682
[19] He Qinglian [何清漣], “Red Infiltration: Taiwanese News Bought by China,” [紅色滲 透:被中國買下的台灣新聞], opinion.cw [獨立評論@天下], Retrieved March 12, 2019, from https://opinion.cw.com.tw/blog/profile/390/article/7840
[20] “United Front Target Taiwan’s Grass Roots: Gangs, Temples, Business,” CommonWealth Magazine, Retrieved August 22, 2018, from https://english.cw.com.tw/article/article.action?id=2083